Using Policy to Resolve the Circuit Split Over the Crime-Fraud Exception to the Attorney-Client Privilege

This article addresses the crime-fraud exception to the attorney-client privilege. The privilege is one of the most important parts of the legal system, but it is not absolute. The Supreme Court last addressed the crime-fraud exception to the privilege thirty years ago in United States v. Zolin. Unfortunately, the Court failed to address the crucial issue of the burden of proof for establishing that the exception applies. This failure has led to a split amongst the circuit courts of appeal, with a resulting system of rules that is based on the location of the court. This situation is untenable in a modern age when crimes and frauds frequently cross jurisdictional boundaries. Both litigants and the public are entitled to consistent rules. This article surveys the relevant case law and proposes general rules based on policy considerations that should be established by the Supreme Court.